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TMI Blog1999 (10) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred, but the essence of dispute is the same. In I. T. R. Nos. 96 to 98 of 1997 relating to the assessment years 1985-86, 1987-88 and 1988-89, the question referred is as follows : "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in relying on the marginal notes of section 273 for confirming the levy of penalty under section 273 (2)(c) of the Income-tax Act, 1961, for the assessment year 1985-86 and under section 273(1)(b) of the said Act for the assessment years 1987-88 and 1988-89?" After having heard learned counsel for the parties, we reframe the questions referred in I. T.R Nos. 146, 147 and 148 of 1997 to read the same as the question referred in I.T.R. Nos. 91, 92, 94 and 95 of 1997. The factual background is unnecessary to be referred to in detail. In each case, the factual position is that the assessee had furnished a statement of advance tax as the case may be, within the stipulated time, but had not paid the advance tax in accordance with the same. The controversy is whether the payment of advance tax is also necessary in the background of section 209a of the Act. In each case, the Assessing Officer levied p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not expired, or in one sum if only the last of such dates has not expired. (2) Where an assessee who is required to send a statement under clause (a) of sub-section (1) estimates on or before the date on which the first instalment of advance tax is due in his case under sub-section (1) of section 211 that, by reason of his current income being likely to be less than the income on which advance tax is payable by him under sub-section (1) or for any other reason, the amount of advance tax computed in the manner laid down in section 209 on the current income would be less than the amount of advance tax payable by him under sub-section (1), he may send to the Income-tax Officer, in lieu of such statement, an estimate of (i) the current income, and (ii) the advance tax payable by him on the current income calculated in the manner laid down in section 209, and shall pay such amount of advance tax as accords with his estimate in equal instalments on the dates applicable in his case under section 211. (3) Where an assessee who has sent a statement under clause (a) of sub-section (1) estimates on or before the date on which the last instalment of advance tax is due in his case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (2) or, as the case may be, sub-section (3) on or before such date, extend the date for furnishing such estimate up to a period of 30 days immediately following the last date of the previous year in respect of that business and, where the date is so extended, the assessee shall pay, on or before the date as so extended, the amount by which the advance tax already paid by him falls short of the advance tax payable in accordance with his estimate : Provided further that in the case of an assessee, being a company, the provisions of this sub-section shall have effect as if for the figures and words '331/3 per cent.', the figures and words '20 per cent.' had been substituted. (5) The assessee may send a revised estimate of the advance tax payable by him on or before any one of the dates specified in section 211 and adjust any excess or deficiency in respect of any instalment already paid in a subsequent instalment or in subsequent instalments. (6) Every statement or estimate under this section shall be sent in the prescribed form and verified in the prescribed manner. Explanation.---For the purposes of this section and section 212, 'current income', in relation to the adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 209A, or under sub-section (1) or sub-section (2) of section 212, an estimate of the advance tax payable by him which he knew or had reason to believe to be untrue, or (aa) has furnished under sub-section (4) of section 209A or under sub-section (3A) of section 212 an estimate of the advance tax payable by him which he knew or had reason to believe to be untrue, or (b) has failed to furnish an estimate of the advance tax payable by him in accordance with the provisions of clause (b) of sub-section (1) of section 209A, or (c) has failed to furnish an estimate of the advance tax payable by him in accordance with the provisions of sub-section (4) of section 209A or sub-section (3A) of section 212, he may direct that such person shall, in addition to the amount of tax, if any, payable by him, pay by way of penalty a sum--- (i) which, in the case referred to in clause (a), shall not be less than 10 per cent. but shall not exceed one and a half times the amount by which the tax actually paid during the financial year immediately preceding the assessment year under the provisions of the Chapter XVII-C falls short of--- (1) 75 per cent. of the assessed tax as defined in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been assessed under clause (b) of section 183, then, notwithstanding anything contained in the other provisions of this Act, the penalty imposable under this section shall be the same amount as would be imposable on that firm if that firm were an unregistered firm. (3) The provisions of this section shall apply to and in relation to any assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, and references in this section to the other provisions of this Act shall be construed as references to those provisions as for the time being in force and applicable to the relevant assessment year." What has been contemplated under section 273 to be culpable or blameworthy is knowingly furnishing of untrue statement/estimate or non-furnishing. Up to September 9, 1986, the position was that it became culpable and blameworthy when the assessee, without reasonable cause, did not furnish a statement/an estimate where he was under an obligation to file it. It is to be noted that the question of payment of advance tax, the whole or a part of it, does not find place in the wording of section 273. But the marginal note includes "or failure to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be imposed. However, the question that arises, as contended by the Revenue, is whether use of the expression "or failure to pay advance tax" in the marginal note makes the position different. Marginal notes appended to a section cannot be referred to for the purpose of construing a statute. As has been observed by the apex court in CIT v. Ahmedbhai Umarbhai and Co. [1950] 18 ITR 472, marginal notes in an Indian statute, as in an Act of Parliament, cannot be referred to for the purpose of construing the statute. In Balraj Kunwar v. Jagatpal Singh [1904] ILR 26 All 393 (PC), it was held that marginal notes cannot be referred to for the purpose of construing the statute. As was explained by Lord Macnaghten, the marginal note is not part of an Act of Parliament. The position was reiterated in Board of Muslim Wakfs v. Radha Kishan [1979] AIR 1979 SC 289. Marginal notes to the sections cannot control construction of the statute if its language is clear and unambiguous (see Nalinakhya Bysack v. Shyam Sunder Haldar [1953] AIR 1953 SC 148 and Chandroji Rao v. CIT [1970] 77 ITR 743 (SC)). But they may throw light on the intention of the Legislature in case of ambiguity (see R. S. Joshi. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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